Opinion
No. 1WR-CV-03-0402032-S
April 29, 2004
MEMORANDUM OF DECISION
The City of Bridgeport is the owner of an approximately 320-acre parcel of real property located in the Town of Fairfield, Connecticut, which parcel is designated as Parcel No. 1 on Tax Assessor's Map No. 24 and Parcel No. 2 on Tax Assessor's Map No. 11. (R.O.R. #15, page 9, R.O.R. #26, page 10.) Pursuant to Connecticut General Statutes Sections 8-8 and 8-10, plaintiffs, the City of Bridgeport and the Board of Park Commissioners of the City of Bridgeport ("Bridgeport") appeal a decision of the defendant, the Town Plan and Zoning Commission of the Town of Fairfield ("Commission") approving the Commission's own Application for Amendment of Zoning Map ("Application"). This decision changes the zone of this property from two residential districts with minimum lot sizes of 14,000 and 20,000 square feet to the least dense residential district in Fairfield with a minimum lot size of approximately two acres which is 87,120 square feet.
I. FACTS
The property that is the subject of this appeal is commonly known as the Fairchild Wheeler Golf Course ("the Golf Course"). The Golf Course is currently zoned Residence R-3, with a few small areas zoned Residence R-2. On October 10, 2000, Fairfield adopted its current Town Plan of Conservation and Development ("Town Plan"), which calls for either a decrease in the permissible density of the development of the Golf Course or for Fairfield to acquire the Golf Course. (R.O.R. #3, p. 2, #2, 3, pp. 2-3.)
In December 2002, the Commission submitted an application to the Fairfield Town Clerk requesting a change in the zoning designation of the Golf Course from Residence R-3 and R-2 to Residence AAA. (R.O.R. #15, pp. 9-10.) The R-2 zone requires a minimum size of 14,000 square feet per lot and R-3 requires a minimum size of 20,000 square feet per lot. The AAA zone requires a minimum size of two acres, approximately 87,000 square feet per lot. (R.O.R. #32, § 5.1.1, p. 15.) The application was undated and unsigned. The application failed to include a description or map of the boundaries of the proposed zone changes. (R.O.R., #11, p. 2.) The map accompanying the application was drawn to scale more than 100 feet to the inch. The minimum fee of $50.00 did not accompany the application. (Complaint at 6, Answer at 6.)
On December 18, 2002, The Commission notified the City of Bridgeport of the application by letter. (Complaint at 7, Answer at 7, R.O.R. #6.) On January 16, 2003, a copy of the Notice of Public Hearing was filed in the Town of Fairfield Clerk's Office. The Clerk published notice of the hearing in the Fairfield Citizen-News on January 17 and 24, 2003.
The Commission held a public hearing on the application on January 28, 2003. (R.O.R. #10.) The hearing was continued to March 4, 2003 by motion of counsel for the City of Bridgeport. (R.O.R. #26, p. 2.) The Commission allowed the Director of Planning and Zoning for the Town of Fairfield, Joseph E. Devonshuk, Jr., to present the application on its behalf. Mr. Devonshuk testified that the proposed zone change for the Golf Course was consistent with and was designed to implement the policy recommendations set forth in Section 11.3.2 of the Town Plan of Development. (R.O.R. #15, pp. 7-8, 11, R.O.R. #26, pp. 3, 4-5.) Moreover, Mr. Devonshuk testified that the proposals would not change or prohibit any currently permitted use of the Golf Course but rather would only increase the minimum lot size permitted. (R.O.R. #15, p. 8, 5, R.O.R. #26, p. 5.) The Commission also allowed comments from the public. Bridgeport's presentation was continued until March 4, 2003. (R.O.R. #15, p. 3.)
At the March 4, 2003 hearing, the City Attorney of Bridgeport opposed the application. (R.O.R. #26, pp. 10-36, 54-59, 66-68.) He argued that the zoning changes would place the Golf Course in Fairfield's most restrictive residential zoning district. Peter A. Vimini, MAI, an appraiser, prepared a report and presented it to the Commission. (R.O.R. #21, #26, pp. 39-48.) The report stated that the neighboring property surrounding the Golf Course is high-density property, with a high density of cluster developments and a high concentration of institution uses. Therefore, changing the zoning of the Golf Course to AAA would cause the Golf Course property to be out of character with its neighborhood. (R.O.R. #21, p. 3, #26, pp. 41-42.) Additionally, Mr. Vimini stated that roadway system is adequate to support the build-out of the Golf Course's at its previous zoning for the higher density R-2 and R-3 Residence Districts, and public water and sewer services are available. (R.O.R. #21, p. 4, #26, p. 43.) Mr. Vimini further testified that the average sales for the price of land within the previous three and a half years with zoning comparable to the Golf Course's zoning of R-2 and R-3 Residence Districts was approximately $407,000 per acre whereas the average sales price in a AAA zoned district was $154,000 per acre. (R.O.R. #21, p. 4, #26, p. 43.) Mr. Vimini testified that the existing income and demographic characteristics support the construction of moderately priced homes on smaller lots in Fairfield, and there is a limited demand for higher priced homes on larger lots in the area of the Golf Course. (R.O.R. #21, p. 5, #26, p. 46.) Finally, Mr. Vimini testified that the change of zone would reduce the number of building lots on the Golf Course by 68 percent. (R.O.R. #21, p. 9.)
On March 25, the Commission unanimously voted to approve the application. Notice of the Commission decision was published in the Fairfield Citizen-News on March 28, 2003. (R.O.R. #28, pp. 3-5.) On that same date the Commission notified the City of Bridgeport of its decision to approve the application. (Complaint at 11, 12, Answer at 11, 12.) The effective date of the decision was March 29, 2003. (Complaint at 13, Answer at 13.)
Bridgeport now files this appeal from the Commission's decision to the Superior Court.
II. STANDARD OF REVIEW
When deciding appeals, "[t]he court is not at liberty to substitute its judgment for that of the administrative tribunal." Scott v. Town of North Stonington Zoning Board of Appeals, 2003 WL 22962452, *2 (Conn.Super). "The court may only determine whether the Board acted arbitrarily or in abuse of its discretion." Id. "The decision of the defendant Board may be reversed only if it is found that the Board's action was illegal, arbitrary or in abuse of its discretion." Id. "Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . ." Willard v. Zoning Board of Appeals, CT Page 6649 152 Conn. 247, 248-49, 206 A.2d 110 (1964). "The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." Horvath v. Zoning Board of Appeals of the Town of Torrington, 163 Conn. 609, 316 A.2d 418 (1972).
III. AGGRIEVEMENT
There are two types of aggrievement, classical aggrievement and statutory aggrievement. Zoning Board of Appeals v. Planning and Zoning Commission, 27 Conn. App. 297, 300 (1992). Bridgeport is both classically and statutorily aggrieved by the Commission's approval of the application because it is the owner of the subject property of the application, the Golf Course, and has a specific personal and legal interest in the Commission's decision.
IV. DISCUSSION A. Section 8-3(a) of Connecticut General Statutes
Bridgeport argues that the Commission did not fully comply with Section 8-3(a) of Connecticut General Statutes because they failed to file in the Town Clerk's Office a public notice containing a clear description of the proposed boundary change that designated the exact tax map parcels to be affected by the zone change more than ten days prior to the public hearing.
Bridgeport states in its brief that the Commission filed only a copy of the public hearing notices with the Fairfield Town Clerk, and that these notices make reference only to the street on which the Golf Course is located, not its boundaries, as required by Section 8-3(a) of the General Statutes. Bridgeport argues this is a jurisdictional defect, making any decision of the Commission void. However, the issue regarding whether the map description and proposed boundary change filed by the Commission in the Town Clerk's office was in compliance with Section 8-3(a) was not raised before the Commission at the hearing. The Record shows that the Bridgeport City Attorney discussed the adequacy of the notice received by the Bridgeport Town Clerk, but shows no discussion regarding the adequacy of the map filed with the Fairfield Town Clerk. (R.O.R. #26, pp. 54-55, 58). "A party to an administrative proceeding cannot be allowed to participate fully at hearings and then, on appeal, raise claims that were not asserted before the [commission]." Evans v. Plan Zone Commission of Town of Glastonbury, 73 Conn. App. 647, 649, CT Page 6650 808 A.2d 1151 (2002) quoting Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632, 613 A.2d 739 (1992). Therefore, Bridgeport has waived this claim by not asserting it at the hearing.
Even if Bridgeport had raised this issue at the hearing, there is ample evidence in the Record that this is not a jurisdictional defect because Fairfield did in fact comply with the notice requirements in Section 8-3(a) of the General Statutes. The relevant portion of Section 8-3(a) reads, "a copy of such proposed regulation or boundary shall be filed in the office of the town, city or borough clerk, as the case may be, in such municipality . . . for public inspection at least ten days before such hearing." "The underlying purpose of such requirements is `not to permit changes, exceptions or relaxations in zoning regulations except after such full notice as shall enable all those interested to know what is projected and to have opportunity to protest, and as shall insure fair presentation and consideration of all aspects of the proposed modification.'" Hutchison v. Board of Zoning Appeals, 138 Conn. 247, 251, 83 A.2d 201 (1951). The purpose of Section 8-3(a) is to put interested parties on notice.
"There is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission." Foran v. Zoning Board of Appeals, 158 Conn. 331, 336, 260 A.2d 609 (1969). Bridgeport has failed to overcome the presumption of regularity in the proceeding of the Commission. The Record shows that a copy of the public notice describing the proposed boundary change was on file with the Fairfield Town Clerk's Office no later than January 16, 2003, which was more than ten days before the public hearing held on January 28, 2003. Moreover, the description of the proposed zone change was adequate to supply the public with notice of property to be re-zoned. The public notice stated, "This property is approximately 320 acres in size and is known as Fairchild Wheeler Golf Course and is shown as parcel #1 on Tax Assessor's Map #24 and parcel #30 on the Tax Assessor's Map #11." (R.O.R. # 7, 9 and 10.) "The fundamental reason for the requirement of notice is to advise all affected parties of their opportunity to be heard and to be apprized of the relief sought." Schwartz v. Hamden, 168 Conn. 8, 14, 357 A.2d 488 (1975). This description gave all affected parties notice of the precise location and boundaries of the Golf Course by referring to maps on file in the Tax Assessor's Office.
Fairfield did fully comply with Section 8-3(a) of Connecticut General Statutes by filing in the Town Clerk's Office a public notice containing a clear description of the proposed boundary change that designated the exact tax map parcels to be affected by the zone change more than ten days prior to the public hearing. Therefore, there is no jurisdictional defect.
B. The Town of Fairfield's Comprehensive Zoning Plan
Bridgeport next raises the issue that based on the Record before it, the Board was unable to find that the proposed zone change was in accordance with the Town of Fairfield's comprehensive plan. Bridgeport argues that by approving the application for the zone change, Fairfield did not act with the intent of promoting the best interests of Fairfield, but rather in an effort to diminish the developmental potential and value of the Golf Course.
"The test of the action of the [zoning] commission is twofold: (1) The zone change must be in accord with a comprehensive plan, General Statutes § 8-2, and (2) it must be reasonably related to the normal police power purposes enumerated in § 8-2." First Hartford Realty Corp. v. Plan and Zoning Commission, 165 Conn. 533, 541, 338 A.2d 490 (1973). The goal of the zone change must be to promote the best interests of the community.
Based on the Record, the Commission found that this proposed zone change was in accord with the town's comprehensive zoning plan. Bridgeport argues that the Golf Course is surrounded by higher density housing, with pockets of dense cluster development and a high concentration of institutional use. However, the uses permitted on the Golf Course, recreational and residential use, remain the same under the zone change and are attuned to the surrounding area. Fairfield Town Planning Director Devonshuk testified at the hearing, "The only effect of the zone change is to increase the minimum lot size permitted and to impose certain additional design requirements for construction of single family dwellings on the property." (R.O.R. #26, page 5.) Devonshuk testified that the proposals would not change or prohibit any currently permitted use of the Golf Course but rather would only increase the minimum lot size permitted. (R.O.R. #15, p. 8, 5, ROR. #26, p. 5.)
Based on the Record before it, the Commission was able to find that the proposed zone change was in accordance with the Town of Fairfield's comprehensive plan.
C. Compliance with Section 2.36 and 2.39 of the Fairfield Zoning Regulations
Bridgeport argues that Fairfield's application was incomplete because the Commission did not pay the required fees under Section 2.36 of the Zoning Regulations and the application failed to comply fully with the procedures adopted by the Commission for zone change pursuant to Section 2.39 of the Fairfield Zoning Regulations. Section 2.39 of the Fairfield Town Zoning Regulations provides, "[a]ny petition for the amendment or change of the Zoning Regulations or Zoning Map shall be submitted to the Commission in accordance with such rules and procedures as the Commission may adopt." (R.O.R. #32, p. 14.) Bridgeport argues since the map accompanying the zone change application was not drawn to the required scale of 100 feet to the inch, the change of zone was invalid under Section 2.39. However, this argument fails because the Commission was free to adopt a zoning change without any petition and was free to act on its own motion. See First Hartford Realty Corp. v. Plan Zoning Commission, 165 Conn. 534, 338 A.2d 492 (1973). Hence, since no petition was necessary for the Board to change the zoning, the fact that the petition does not conform exactly to the zoning regulations is "only an irregularity which did not destroy the jurisdiction of the commission to act on the petition." Chesson v. Zoning Commission of City of Bridgeport, 157 Conn. 520, 527, 254 A.2d 864 (1969).
Additionally, Bridgeport argues that the Commission's failure to pay the required filing fee or to waive the fee for the application renders the application incomplete and therefore the Commission lacks authority to approve it. This argument also fails because Connecticut General Statutes Section 8-3(a) states in pertinent part "[t]he commission may require a filing fee to be deposited with the commission to defray the cost of publication of the notice required for hearing." The filing fee is a mere formality that the Commission had the right to waive. There is no requirement that the Commission pay itself a fee. The record shows that the Commission followed its policy that the fee is "always waived" when the Commission is making an application to itself for a zone change. (R.O.R. # 26, page 56.)
D. The Issue of Taking Without Just Compensation CT Page 6653
Bridgeport's final argument is that the zone change of the Golf Course constituted a taking without just compensation by the Town of Fairfield in violation of Article One, Section Eleven of the Connecticut Constitution. Bridgeport argues that the zone change is so unreasonable and confiscatory that it constitutes a taking of the Golf Course for public use."[A] determination as to whether a zoning regulation is unreasonable as applied to a particular piece of property so as to constitute a taking must be made in light of the facts and circumstances of each particular case." D'Addario v. Planning Zoning Commission of the Town of Darien, 25 Conn. App. 137, 143, 593 A.2d 511 (1991); see also Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146 (1976); Horwitz v. Waterford, 151 Conn. 320, 323, 197 A.2d 636 (1964).
"Zoning regulations constitute a valid exercise of the police power only when they have a `rational relation to the public health, safety, welfare and prosperity of the community' and are `not such an unreasonable exercise of [the police] power as to become arbitrary, destructive or confiscatory.'" Corthouts v. Newington, 140 Conn. 284, 288 (1953), quoting State v. Hillman, 110 Conn. 92, 100, 105, 147 A.2d 294 (1929). "Whether a zoning ordinance meets this test must be determined in the light of existing conditions, in order that the purpose for which the police power is invoked may be promoted." Corthouts v. Newington, 140 Conn. at 288, quoting Euclid v. Ambler Realty Co., 272 U.S. 365, 387, 4 S.Ct. 114, 71 L.Ed. 303.
To determine if a taking has occurred, the court must apply a balancing test. This test requires the court to consider (1) the degree of diminution in value of the particular piece of property, (2) the nature and degree of the public harm to be prevented, and (3) the realistic alternative uses available to the landowner. Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. at 151; D'Addario v. Planning and Zoning Commission of the Town of Darien, 25 Conn. App. at 143.
Bridgeport asserts that the zone change drastically reduces the value of the Golf Course because the zone change reduces the total available building lots by 68 percent. This change therefore reduces the value of the property by 63 percent. However, "[t]he maximum possible enrichment of a particular landowner is not a controlling purpose of zoning." DeForest Hotchkiss Co. v. Planning and Zoning Commission, 152 Conn. 262, 272, 205 A.2d 774 (1964), quoting Senior v. Zoning Commission, 146 Conn. 531, 535, 153 A.2d 415 (1959). Moreover, Bridgeport argues in its brief that this is a drastic percentage decrease in value making the zoning change confiscatory. Bridgeport cites D'Addario v. Planning and Zoning Commission, 25 Conn. App. at 147, as supporting case law. However, D'Addario is distinguishable because the confiscatory nature found in the rezoning in that case reduced the percentage value of the subject parcels by 91.4% and 89.5%. D'Addario v. Planning and Zoning Commission of the Town of Darien, 25 Conn.App at 147. The diminution in the Golf's Course value has not been drastically reduced.
The zoning change does prevent public harm in that the zone change minimizes the reduction of open space that would occur if the Golf Course were ever to be developed. The character of the area would change significantly if the Golf Course were to be developed for residential lots under the R-3 and R-2 zoning. There is no evidence in the Record that this zone change will have any adverse impact on the character of the land, but rather will serve to preserve open space and the character of the area. Therefore, the private interests of Bridgeport are outweighed by the potential for public harm. "Zoning regulations, so far as they reasonably promote the public health, safety and welfare, are constitutional even though their effect may be to limit the exercise of private property rights." Poneleit v. Dudas, 141 Conn. 413, 417-18, 106 A.2d 479 (1954).
Bridgeport may continue to use the Golf Course property for recreational use. Additionally, the property can be developed in the future as two-acre residential lots. These two-acre lots will not be an anomaly in the area of the Golf Course.
The Commission's actions do not amount to a taking in violation of Article One, Section Eleven of the Connecticut Constitution. The zoning change is not so unreasonable and confiscatory that it constitutes a taking of the Golf Course.
V. Conclusion
The Commission did not lack jurisdiction to approve the application. The application for the zoning change was complete, and the zoning change was in accordance with the comprehensive plan of the Town of Fairfield. There is no confiscatory effect of the zoning change on the Golf Course. The Commission's decision to grant the application is affirmed and the appeal is dismissed.
OWENS, J.